This article, an expanded version of the author's remarks at the 2013 Honorable Clifford Scott Green Lecture at the Temple University Beasley School of Law, illuminates the history and the context of the Thirteenth Amendment. This article contends that the full scope of the Thirteenth Amendment has yet to be realized and offers reflections on why it remains an underenforced constitutional norm. Finally, this article demonstrates the relevance of the Thirteenth Amendment to addressing contemporary forms of racial inequality and subordination.

11/29/2013

David B. Kopel (Independence Institute; University of Denver - Sturm College of Law), Clayton E. Cramer (College of Western Idaho) and Joseph Olson (Hamline University - School of Law) have posted Knives and the Second Amendment (University of Michigan Journal of Law Reform, vol. 47, pages 167-215 (Fall 2013)) on SSRN. Here is the abstract:

This Article is the first scholarly analysis of knives and the Second Amendment. Under the Supreme Court’s standard in District of Columbia v. Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.

There is no knife that is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on carrying handguns set the upper limit for restrictions on carrying knives.

Prohibitions on carrying knives in general, or of particular knives, are unconstitutional. For example, bans of knives that open in a convenient way (e.g., switchblades, gravity knives, and butterfly knives) are unconstitutional. Likewise unconstitutional are bans on folding knives that, after being opened, have a safety lock to prevent inadvertent closure.

Recent Presidents have claimed wide-ranging authority to decline enforcement of federal laws. The Obama Administration, for example, has announced policies of declining to charge certain drug offenses, abstaining from investigation and prosecution of certain marijuana crimes, postponing enforcement of key provisions of the Affordable Care Act, and suspending enforcement of deportation laws against certain undocumented immigrants. While these examples highlight how exercises of executive enforcement discretion—the authority to turn a blind eye to particular legal violations—may effectively reshape federal policy, prior scholarship has offered no satisfactory account of the proper scope of, and constitutional basis for, this putative executive authority. This article fills that gap.

Through close examination of the text, history, and normative underpinnings of the Constitution, as well as relevant historical practice, the article demonstrates that there is indeed a constitutional authority of enforcement discretion—but it is both limited and defeasible. Presidents may properly decline enforcement of civil and criminal prohibitions in particular cases, notwithstanding their obligation under the Take Care Clause to ensure that “the Laws be faithfully executed.” But this authority does not extend to prospective licensing of prohibited conduct, nor to policy-based non-enforcement of federal laws for entire categories of offenders. Presuming such forms of executive discretion would collide with another deeply rooted constitutional tradition: the principle that American Presidents, unlike English Kings, lack authority to suspend statutes or dispense with their application to particular individuals. This framework not only clarifies the proper executive duty with respect to enforcement of federal statutes, but also points the way to proper resolution of other recurrent separation-of-powers issues.

A very important article on a timely topic that's come up here a number of times.

In addition to the Originalist Scholars' brief in NRLB v. Noel Canning, Will Baude notes that he and Michael McConnell filed this amicus brief on behalf of Constitutional Law Scholars in support of Respondents (that is, against the executive branch). Their brief makes the further important point that nothing in subsequent practice gives any ground to depart from the original meaning of the recess appointments clause.

The Baude/McConnell brief is an important complement to the Originalist Scholars brief. Our brief makes the originalist case against the executive's recess appointments in the case, and then concludes (rather abruptly, I might say) that the decision of the court of appeals should be affirmed. Yet even among originalists, there is considerable difference of opinion as to the circumstances under which the original meaning is or is not conclusive of modern outcomes. Our brief does not argue (and should not be read to imply) that original meaning is always conclusive; at minimum, at least some of its signatories think that precedent (even non-originalist precedent) plays an important role, and some of us (e.g., me) have kept carefully agnostic on the matter.

But the Baude/McConnell brief shows that, even if one is willing to allow other considerations to trump originalism in some cases, there is no plausible argument that this is one of those cases.

11/26/2013

Will Baude has an interesting post on various aspects of what the Senate Democrats did, which is well worth reading. One question he asks is whether the Senate Democrats passed a new rule or simply refused to apply the existing rule, perhaps creating a precedent. Another question involves the power of the majority of the Senate to make decisions, without being bound by existing Senate rules.

The constitutional problem is that the current Senate rules purport to stop a majority from changing the rules, by requiring a 2/3 majority to get cloture on a proposal to change the rules. It is the combination of that 2/3 requirement and the 60-vote cloture requirement that is unconstitutional. And it is not clear to me, in the case of such an unconstitutional combination, which rule is supposed to give way. One possibility is that the constitutional remedy is to jettison the 2/3 rule-amending requirement, and then use that power to formally amend the filibuster (if desired), not just to ignore the filibuster rule.

This is an interesting question, and I think there are arguments on both sides of whether the Senate majority has to change the 60 vote cloture rule or whether it can simply ignore the existing rule.

Ed Whelan also has three interesting posts on the filibuster, written from the perspective of a Republican who believes the Senate Democrats have been very hypocritical. Whelan notes that he has long favored eliminating the filibuster on judicial nominees, which is true. I first met Whelan when he I debated whether the appointment of Supreme Court justices should be subject to a supermajority rule.

My colleague Michael Devitt and I filed this amicus brief yesterday on behalf of an outstanding group of originalist scholars (plus me) in the recess appointments case, NLRB v. Noel Canning. We argue that under the Constitution's original meaning, the Recess Appointments Clause -- which allows the President to "fill up all Vacancies that may happen during the Recess of the Senate" -- only allows the President to fill vacancies that arise between the Senate's sessions. That is because the original meaning of "happen" is "arise" and the the original meaning of "the Recess" is the break between sessions. (The executive branch argues to the contrary that "happen" means "exist" and "the Recess" refers to any break in the Senate's conduct of business -- so that the President can unilaterally fill any vacancy that exists merely by waiting for the Senate to take a short break.)

Though I have not confirmed it, I believe this is the first time that an amicus brief has been filed expressly as a "Brief of Originalist Scholars."

RELATED: Larry Solum comments here on the possible relationship between the Noel Canning case and the elimination of the filibuster for most appointments -- and also indicates agreement with our position on recess appointments as matter of original meaning.

11/25/2013

The new agreement between Iran and the six powers (including the United States) on Iran's nuclear weapons development is called a "Joint Plan of Action." For constitutional purposes, what is that?

I assume it's not a treaty, because there has been no talk of submitting it to the Senate (and the Senate might well not approve it. And I assume there is no statutory authorization for it, so it is not an "ex-ante" congressional-executive agreement (even if such a thing were constitutional for this sort of a deal).

Is it a sole executive agreement (that is, a international agreement done on behalf of the United States on the President's independent authority)? I have argued (The Constitution's Text in Foreign Affairs, Ch. 9) that under that Constitution's original meaning the President does have some power to make sole executive agreements, especially including temporary ones (the "Joint Plan" has a duration of six months). But that power is narrow, and it is not clear it would encompass promising (as the "Joint Plan" does, p. 3) that "The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from imposing new nuclear-related sanctions [on Iran]," even on a temporary basis. (A stronger argument could be made that the President does have power to agree, at least on a temporary basis, to "suspend" existing sanctions -- as other parts of the Joint Plan promise -- assuming he has statutory authority to do so under existing law).

At Opinio Juris, Duncan Hollis has what appears to me to be the right answer: the "Joint Plan" is not a binding agreement under international law. As he points out, "the operative paragraphs maintain an emphasis on avoiding language of legal intent," including by using words such as "voluntary measures" and "would undertake" (rather than "shall undertake") -- plus the document is unsigned.

Does that make it constitutional? Here's Professor Hollis' assessment:

For the United States, though, I think the third, and most significant, implication of this deal taking a political form is the fact that the Obama Administration doesn’t have to get the Senate or the Congress as a whole to approve it. Legally binding treaties and international agreements require the conclusion of specific domestic approval procedures. The Constitution contemplates the Senate giving advice and consent by a 2/3rd majority to Treaties (and most arms control agreements are done as Treaties). Modern practice meanwhile more regularly favors ‘congressional-executive’ agreements where Congress approves of the conclusion of the agreement before or after the deal is done. In other cases, the President may invoke his sole executive powers to authorize the conclusion of a deal by himself. But, when it comes to political commitments, there are no constitutional precedents requiring that Congress as a whole or the Senate authorize the commitment’s conclusion. Now, together with Josh Newcomer, I’ve argued previously that this status quo is constitutionally problematic where political commitments can function in much the same way as treaties. I fear political commitments may function as a loop-hole for the Executive to do deals that he could not do if he had to go to Congress or the Senate. I’m not sure that this is such a case, but it’s certainly worth thinking about the consequences of having the United States pursue this major foreign policy shift where the U.S. legislature has so little say in the matter (at least until such time as any deal requires changes to U.S. law itself).

My view is this: Hollis and Newcomber may be right to be concerned as a policy matter, and their outstanding article is well worth reading, but "political commitments" by the President are constitutional. The President has diplomatic power as part of his "executive Power" in Article II, Section 1. So he can tell other governments what he will do or not do (of course, he can change his mind later). That communication can take the form of an undertaking to do (or not do) something if the other side does (or doesn't do) something in return. This is just a diplomatic arrangement (a "Gentlemen's agreement," as it was called in the early twentieth century). Because the President is (by definition) not binding himself or the United States under international law, the Constitution's limits on international agreement-making aren't triggered.

I think this has to be the rule as a practical matter as well, because the President and Iran could accomplish the same thing through reciprocal policy announcements. That is, the President could announce that he will, for example, suspend sanctions so long as Iran takes certain steps, and Iran could announce that it will take the specified steps so long as sanctions are lifted. Nothing need be committed to paper, or even agreed face-to-face. Surely this is within the President's diplomatic power (again, assuming he has statutory authority to lift the sanctions). True, it is a "major foreign policy shift," but the executive diplomatic power allows the President to make such shifts. And the fact that, in this case, the reciprocal policies are worked out in advance and written down should not make a constitutional difference.

This means the "Joint Plan" is constitutional. But it also means Iran (or the United States) can depart from it without violating any legal commitment.

The difference between executive discretion and rewriting a law can be blurry, but the latter can generally be characterized as involving broad policy, while the former involves particular circumstances that arise in the administration of a law. (To put it differently, enforcement discretion goes to how a law is implemented, not if.)

I guess that's right, but I continue to think there is a lot more development needed on the distinction.

There's also this more subtle point:

The second constitutional infirmity relates not to Congress, but the states. Unlike prior exercises of presidential enforcement discretion, the fix depends on states violating federal law. That is because it does not change the law on the books. Rather, the feds are simply signaling that they will not enforce certain provisions for some time.

But many parts of Obamacare do have to be applied by states, the traditional front lines of insurance regulation. States, however, lack “enforcement discretion” when it comes to ignoring federal law, even when the president thinks it would be a good idea. As the president has often reminded us, the ACA is “the law of the land,” and remains so after the fix.

It has been customary to divide the powers of government into three, legislative, executive and judicial. Here will now be discussed the doctrine of separation of powers which has played so prominent a part in the theory and practice of constitution making and particularly influenced the framers of Constitution of United states. We shall consider two different questions in the present paper:

1. How far is there separation of powers in different constitutions of the world?